by David A. Kluft

Legal Analysis

This December will mark the twentieth anniversary of Chapter 231, Section 59H of the Massachusetts General Laws, commonly known as the Massachusetts anti-SLAPP statute. A SLAPP suit (SLAPP stands for “strategic litigation against public participation”) is often described as a “generally meritless suit[] brought by large private interests to deter from or punish common citizens for exercising their political or legal rights.”[1] Section 59H allows a party to bring a “special motion to dismiss” such suits.

Governor William Weld, who argued that Section 59H was overbroad, once characterized it as “a bludgeon when a scalpel would do.” The first two decades of cases brought under the statute tell a story of tension and negotiation between the opposite impulses described by Governor Weld’s metaphor. While some decisions have expanded – or confirmed – broad access to the statute’s protections, other decisions have sharpened and narrowed the kind of activity it protects.

The Rise of the SLAPP

The petition clause of the First Amendment guarantees “the right of the people . . . to petition the government for a redress of grievances.” In the latter half of the twentieth century, activists and other individuals increased their petitioning activity in all three branches of government, from speaking out at town meetings to lobbying Congress. In the judicial arena, new legislation such as Section 304 of the 1970 Clean Air Act allowed private parties to sue to enforce public rights. Citizen petitioners were no longer “to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of” public interests.[2]

However, beginning in the 1970’s, those same petitioners increasingly found themselves targeted by retaliatory SLAPP suits. Landlords were suing tenants who reported building violations, businesses were suing customers who made consumer complaints, and public officials were suing their political critics. The classic scenario involved land use. For example, a neighbor opposed a new real estate development by testifying at a zoning hearing or asking a court for an injunction. The developer responded with a SLAPP suit against the neighbor, typically demanding ruinous damages on the grounds that the petitioning activity was defamatory or constituted an abuse of process.[3]

SLAPP suits were rarely, if ever, successful, because the First Amendment guarantees a qualified immunity for petitioning activities.[4] However, winning was not the point. Simply by filing the SLAPP suit, the plaintiff forced the petitioner to divert his focus away from the petitioning activity to deal with a costly legal battle against an opponent with greater resources. SLAPP suits were often difficult to dismiss at the pleading stage and, by the time the petitioners finally prevailed, they were financially exhausted, emotionally drained, and very possibly deterred from engaging in further petitioning.

The Origins of Anti-SLAPP

In 1984, the Supreme Court of Colorado developed a procedure that — while not preventing SLAPP suits altogether — sought to identify them at an early stage for quick disposition. Protect Our Mountain Environment, Inc. v. District Court,677 P.2d 1361 (Colo. 1984) was a classic SLAPP scenario, in which a developer sued a citizens group in retaliation for its public opposition to a building project. The Court announced that, henceforth, where a claim is based on petitioning activity and the petitioner files a motion to dismiss, the motion would be converted to one for summary judgment. To overcome that motion, the SLAPP plaintiff would have to show that the petitioning activities in question “were devoid of reasonable factual support.” This new procedure was a self-conscious attempt to balance, on the one hand, the danger that SLAPP suits may discourage legitimate petitioning and, on the other, the dangers of illegitimate “sham” petitioning. [5] Over the next decade, states began enacting statutory mechanisms loosely modeled after the Colorado decision.[6]

The Massachusetts Anti-SLAPP Statute

The Massachusetts anti-SLAPP statute traces its roots to a 1991 suit brought by a developer against residents of Rehoboth who had signed a petition to oppose a construction project. The suit was eventually dismissed, but only after nine months of litigation and over $30,000 in attorneys’ fees. This episode caused Massachusetts legislators to take note of a “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” [7]

Anti-SLAPP legislation modeled in part after Colorado’s expedited summary judgment procedure was first introduced in the Massachusetts House of Representatives in 1993. The bill that was eventually codified as Section 59H provided that a “party may bring a special motion to dismiss” any claim which is “based on that party’s exercise of its right to petition.” The right to petition is defined broadly as:

[A]ny written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.

The motion judge is required by Section 59H to hear a special motion as expeditiously as possible, and to grant it unless the SLAPP plaintiff can show that “(1) the [petitioner’s] exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the [petitioner’s] acts caused actual injury to the responding party.” All discovery is stayed until the motion is decided, except that the court may order specified discovery pertinent to the anti-SLAPP motion “for good cause shown.” In the event the motion is granted, the trial court “shall award the [petitioner] costs and reasonable attorneys’ fees.”

Governor Weld vetoed the bill and endorsed a more limited mechanism aimed at the dismissal of improper lawsuits brought by real estate developers. However, on December 29, 1994, the Massachusetts House and Senate overrode the veto and Section 59H became effective.

Setting the Standard

The first Section 59H case to reach the Massachusetts Supreme Judicial Court (“SJC”) was not a typical SLAPP scenario. Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1997) involved a former executive of a company who allegedly violated a nondisclosure agreement while preparing for and testifying at a deposition. The company sued for breach of contract, and the defendant filed a Section 59H motion, arguing that the breach of contract claim was “based on” his participation in the judicial process, which constituted petitioning activity. The motion was denied.

On appeal, the SJC announced two important interpretations of Section 59H, one which expanded access to the statute’s protections and the other which significantly narrowed its scope. First, the Court confirmed that the anti-SLAPP law was not limited to issues of “public concern,” as it was in some other states, but also protected petitioning activity with respect to private matters, such as the underlying contract dispute in Duracraft.

Second, a major issue for critics of Section 59H had been the breadth of the phrase “based on.” If any claim “based on” petitioning activity was a SLAPP suit, that could lead to early and unfair dismissal of perfectly legitimate claims or counterclaims merely because they were somehow connected to petitioning activity. The breach of contract claim in Duracraft was but one example. To protect one kind of petitioning (responding to a notice of deposition), the statute was arguably punishing another kind (bringing a legitimate contract claim). The Court addressed this issue by narrowly construing the statutory text and adopting a burden-shifting mechanism for future application of the statute:

The petitioner bringing the anti-SLAPP motion must make a threshold showing through pleadings and affidavits that the claims against it are not just loosely “based on” petitioning, but “based on the petitioning alone and have no substantial basis other than or in addition to the petitioning activities.”

Then, the burden shifts to the nonmoving party to show actual injury, and to demonstrate that the petitioning was “devoid of any reasonable factual support or any arguable basis in law.”

By establishing this procedure, Duracraft effectively rescued the statute from the potentially unconstitutional breadth of its own literal text and ensured that it would be applied in a manner consistent with the federal right to petition. Thus, petitioning activity had immunity, but it was a qualified immunity, one that potentially could be overcome by a party with a legitimate grievance.[8]

Is Abuse of Process Dead?

An issue left undecided by early SJC caseswas the statute’s effect on the tort of abuse of process. This tort is, by definition, based on petitioning activity. However, it concerns not so much the act of petitioning as the “ulterior or illegitimate purpose” for that petitioning. In Fabre v. Walton, 436 Mass. 517 (2002), the defendant had obtained a domestic violence restraining order against her ex-boyfriend. In retaliation, the ex-boyfriend sued the defendant for abuse of process, alleging an improper motive for obtaining the restraining order (harming his career). The defendant filed a Section 59H motion. She argued that asking for a restraining order was protected petitioning activity, but the motion was denied.

On appeal, the ex-boyfriend argued that his abuse of process claim was based not on the defendant’s restraining order per se (the petitioning activity), but on the defendant’s alleged “ulterior motive” for obtaining the restraining order. The SJC refused to recognize such a fine distinction. Irrespective of the defendant’s alleged motive, the only conduct complained of was her petition for the restraining order. The alleged motive for the petitioning was irrelevant, and the Section 59H motion should have been granted.[9]

Did Section 59H and cases like Fabre effectively eliminate common law claims for abuse of process and malicious prosecution? The SJC confirmed the continued existence of these torts in McLarnon v. Jokisch, 431 Mass. 343 (2000). Nevertheless, such claims are undeniably risky since the statute’s passage, and the risk was perhaps increased after Wenger v. Aceto, 451 Mass. 1 (2008), in which the SJC held that, of course, unsuccessful petitioning activity was protected by Section 59H. According to the Court, the “critical determination is not whether the petitioning activity in question [was] successful, but whether it contain[ed] any reasonable factual or legal merit at all.”[10]

Who Is a Petitioner?

Perhaps the most contentious issue in Massachusetts anti-SLAPP jurisprudence has concerned who gets to call themselves a “petitioner.” In Kobrin v. Gastfriend, 443 Mass. 327 (2005), a psychiatrist acting as a government expert witness in a malpractice proceeding was sued over the content of his testimony. The psychiatrist’s Section 59H motion was initially allowed.

On appeal, however, the SJC reversed. The statute describes an anti-SLAPP motion as one “based on [the moving] party’s exercise of its right to petition” (emphasis added). As an expert testifying for the government, the psychiatrist was not exercising his right to petition. Therefore, the Court held, Section 59H did not apply.[11] A vigorous dissent, authored by Justice Martha Sosman, argued that the psychiatrist’s testimony was within the statute’s definition of petitioning, which included “any written or oral statement made before or submitted to a” government body.

But while Kobrin signified an important limit on what constituted petitioning under Section 59H, a parallel line of cases has expanded access to the statute for agents and affiliates of petitioners. This includes parents reporting crimes on behalf of children, McLarnon v. Jokisch, 431 Mass. 343, 349 (2000), and attorneys engaged in petitioning activity on behalf of clients. Plante v. Wylie, 63 Mass. App. Ct. 151, 156-157, rev. denied, 444 Mass. 1103 (2005). Most recently, in Town of Hanover v. New Eng. Reg’l Council of Carpenters, 467 Mass. 587 (2014), a municipality brought an abuse of process action against a union that allegedly had worked behind the scenes to enlist, and then to provide organizational and legal support for, a group of citizens seeking judicial review of a controversial expenditure of town funds. In a decision that will no doubt provide greater protection for all kinds of advocacy groups, the SJC held that the union was engaged in petitioning activity under Section 59H because, unlike the psychiatrist in Kobrin,it was advancing a cause in which it believed and, presumably, shared an interest.

The Line Between Petitioning and Other Speech

Although grounded in the First Amendment’s petition clause, Section 59H’s definition of petitioning arguably protects a wide range of speech not aimed directly at the government but nevertheless “in connection with” petitioning activity. The line between petitioning and other speech was explored by the SJC in Cadle Co. v. Schlictmann, 447 Mass. 242 (2006). In that case, an attorney made allegedly defamatory statements on a website and to newspapers about a debt collection agency with which he had an ongoing legal dispute. The agency sued for defamation, and the attorney filed a Section 59H special motion to dismiss, which the motion judge denied.

On appeal, the SJC, citing Wynne v. Creigle, 63 Mass. App. Ct. 246, rev. denied, 444 Mass. 1105 (2005), acknowledged that statements by petitioners to the press, where they essentially mirror the petitioner’s statements to government bodies are protected by Section 59H. However, that didn’t mean that every statement concerning any issue under government review was protected. For example, in Global NAPs, Inc. v. Verizon New England, Inc., 63 Mass App. Ct. 600 (2005), a company’s statements about a government investigation of its competitor were not protected, because the company was not petitioning on its own behalf. This distinction is further echoed in cases like Ayasli v. Armstrong, 56 Mass. App. Ct. 740 (2002), rev. denied, 439 Mass. 1101 (2003), in which the Appeals Court separated protected petitioning activity (contacting municipal authorities to stop a building project) from related tortious behavior (engaging in physically intimidating acts in order to stop the project). Similarly, in Cadle, the SJC held that the attorney’s statements to the press and on his website were not protected because they exceeded the scope of the petitioning activity, and instead they were designed to attract new clients and gain other tactical advantages.[12]

Making a Federal Case

Before 2010, a Section 59H motion could not be filed in federal court because it was regarded as a procedural mechanism — not a substantive right — which conflicted with the standards governing dispositive motions pursuant to Rule 12(b)(6) and Rule 56. Baker v. Coxe, 940 F. Supp. 409, 417 (D. Mass. 1996). However, in Godin v. Schencks, 629 F.3d 79, 92 (1st Cir. 2010), the First Circuit held that Maine’s anti-SLAPP statute was sufficiently substantive in nature such that failure to apply it in federal court diversity actions would frustrate the goals of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938): the discouragement of forum shopping and the equitable administration of the law. Three years later, the court in Bargantine v. Mechs. Coop. Bank, 2013 U.S. Dist. LEXIS 169284 (D. Mass. 2013) recognized that, because the Massachusetts anti-SLAPP statute was identical to the Maine statue, Section 59H should apply in diversity actions in the District of Massachusetts.

The Bludgeon And the Scalpel

After twenty years of case law, it would be unfair to characterize the Massachusetts anti-SLAPP statute as a bludgeon or a scalpel. Section 59H’s application by courts has aspects of both metaphors, sometimes within the same case. On the one hand, the decision in Duracraft maintained access to the statute for matters of private concern but, on the other hand, it substantively narrowed the statutory text to ensure that the statutory protection is limited to petitioning activity “alone.” Subsequent cases further reflect these dialectic impulses of expanded access and limited definitions of “petitioning.” On the one hand, cases like Wenger, Town of Hanover and the introduction of Section 59H into federal court further expand access to the statute for different types of litigants. On the other hand, Kobrin and Cadle significantly limit the kinds of activity that are identified as petitioning in the first place. It seems likely that — as the courts strive to balance the rights of the parties in a manner that is fair and consistent with the First Amendment right to petition — these opposite impulses will continue to shape the law over the next twenty years.

David Kluft is a partner at Foley Hoag LLP, a member of the BBJ Board of Editors, and an editor of the trademarkandcopyrightlawblog.com.

[4] First Amendment petitioning immunity is qualified, not absolute, and can be overcome by a showing of “actual malice.” SeeMcDonald v. Smith, 472 U.S. 479, 481 (1985) (letter to President regarding executive appointment not absolutely privileged), citingNew York Times v. Sullivan, 376 U.S. 254 (1964).

[12] The attorney also cited MacDonald v. Paton, 57 Mass. App. Ct. 290 (2003), in which theAppeals Court had concluded that a website run by a politician was an interactive public forum in which citizens discussed local governance, and therefore was a protected petitioning activity. The Supreme Judicial Court distinguished that case on the grounds that, while the website in MacDonald had been interactive and non-commercial, the attorney’s website in Cadle solicited clients and did not provide a space for public discussion.

By Anjali Waikar

Practice Tips

As the national debate concerning immigration reform continues, the federal government has turned its attention to cracking down on employers who hire unauthorized workers. Such efforts were highlighted in the federal immigration raid of the Michael Bianco, Inc. factory in New Bedford in 2007, where nearly 350 individuals were rounded up and placed in deportation proceedings. The company ultimately pled guilty to 22 counts relating to the hiring of unauthorized workers and paid a $1.5 million fine. To respond to such increased scrutiny, the government has offered employers various tools to check employees’ work authorization. For example, the Town of Milford recently became the first municipality in New England to sign up for IMAGE, a federal program providing employers with education and training on hiring procedures, fraudulent document protection, and use of employment screening tools like E-Verify that allows employers to check an applicant’s work eligibility.

Illegal immigration is fueled by job opportunities. Accordingly, many well-intentioned employers, in the face of increasing scrutiny, are concerned about what they can and should be doing to ensure they are not violating federal immigration laws by hiring unauthorized workers. There are myriad considerations employers face, including how to correctly fill out the I-9 Form, how to respond to Social Security “no match” letters, and whether to enroll in E-Verify, to name a few. What, then, are some of an employer’s obligations with respect to ensuring that it is not employing unauthorized workers? What risks does an employer face by terminating an employee whom the employer believes has submitted false documents? What are best practices an employer may follow to avoid immigration-related employment discrimination? This article provides an introduction to these issues and practical tips for lawyers who advise employers that are seeking to comply with the law without running afoul of immigration-related antidiscrimination laws.

Immigration Laws in the Workplace

The federal Immigration Reform and Control Act of 1986 (IRCA) prohibits knowingly hiring undocumented workers and imposes affirmative obligations on employers to verify a new employee’s identity and work authorization. IRCA also prohibits employers from discriminating against employees who look or sound “foreign.” IRCA prohibits national origin discrimination against all work-authorized individuals in hiring, recruitment, referrals and discharge practices, as well as discrimination based on citizenship status for certain categories of workers, unless such discrimination is otherwise required by law or government contract. The antidiscrimination provisions of IRCA apply to all employers with at least four employees. In addition, employers are subject to the antidiscrimination provisions of Title VII of the Civil Rights act of 1964 as well as Massachusetts’ antidiscrimination laws, particularly General Laws Chapter 151B.

To enforce its antidiscrimination provisions, IRCA created the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), located within the Civil Rights Division of the Department of Justice. It is the only governmental office specifically designed and empowered to protect the civil rights of immigrant workers.

In 2000, OSC and the Massachusetts Commission Against Discrimination entered into a memorandum of agreement whereby each entity would support the other’s missions and notify complainants of their right, if applicable, to file a complaint with the other agency. See http://www.justice.gov/crt/about/osc/pdf/Massachusetts.pdf. Accordingly, for the purpose of satisfying the statute of limitations, complaints under IRCA may also be filed with the MCAD. Since 2006, OCS has issued at least ten letters of resolution to Massachusetts employers, either concluding independent investigations or memorializing voluntary settlement agreements with the charging parties. For example, on January 31, 2012, OSC issued a letter of resolution resolving an investigation into allegations that a Massachusetts company discriminated on the basis of national origin by demanding that a lawful permanent resident present a green card. The resolution included full back pay of $900 and company training on the antidiscrimination provisions of IRCA.

Tips for Avoiding Immigration-Related Discrimination

With this background, lawyers should be aware of the following tips for avoiding immigration-related employment discrimination:

Citizenship Requirements. Employers may violate IRCA, as well as Title VII based on national origin discrimination, by imposing citizenship requirements or giving preference to U.S. citizens, in the absence of a legal requirement to do so (e.g., pursuant to law or government contract).

I-9 Form. The I-9 Form is required of all employees upon hire, regardless of the employee’s national origin or citizenship. Employees are required to present documentation to their employers to establish both identity and employment eligibility. Failing to verify new employees’ identity and employment eligibility by completing the I-9 Form violates federal immigration law. The I-9 Form provides for several combinations of legally acceptable documents. Employers should maintain consistent procedures relating to I-9 Forms or face potential discrimination claims under IRCA. For example, employers should not:

Request more or different documents than the I-9 Form requires to validate a candidate’s legal status, as doing so may violate IRCA. Likewise, employers must not selectively request proof of permanent residency or other work authorization from an applicant based on his or her national origin. Instead, employers should ask all applicants for acceptable documents indicated on List A or B and C on the I-9 Form;

Reject government-issued documents that reasonably appear to be genuine and to relate to the employee presenting them. However, if the document does not reasonably appear to be genuine or to relate to the individual, the employer may ask the employee for additional documentation and should not employ the person if he or she is unable to comply.

Timing. Employers who ask to see a job candidate’s documents before making a hiring decision may face discrimination claims if the candidate is not offered the job. Instead, employers should request proof of work authorization after making a contingent offer of employment.

Expiring Documents. Employers must not refuse to hire a qualified worker whose employment authorization expires in the future. Instead, employers must complete the hire with the understanding that the employee must provide evidence of continuing employment authorization before the document’s expiration date.

Re-verification of Current Employees. Employers must not require an employee to “re-verify” his/her employment eligibility after s/he has already done so. Employers are also prohibited from re-verifying employment eligibility in many other situations, such as when a worker returns from approved leave or is reinstated after an unlawful suspension or termination. See 8 C.F.R. 274a.2(b)(1)(viii)(A). Only in limited circumstances may an employer require “re-verification,” such as when an employment authorization document presented has expired or is about to expire or when the employer has “constructive knowledge” that the worker is not authorized. An employer has “constructive knowledge” – and thus a duty to investigate – where it has knowledge that would lead a reasonable person to believe that an individual is not authorized to work in the United States, such as when ICE notifies the employer that the employee may have presented false documents.

Contacting Federal Authorities. Some employers may be tempted to contact federal authorities to “verify” a worker’s work eligibility or social security number. Because such a “verification” effort is likely to be ineffective due to extensive inaccuracies in the information maintained by the federal government, employers should accept documents that reasonably appear to be genuine and to relate to the employee presenting them. Further, employers should not routinely investigate documents without reason to believe such documents are false.

Conclusion

The antidiscrimination provisions of IRCA prohibit unfair, immigration-related employment practices. It is possible to comply with the federal laws governing employment verification without triggering exposure to claims of discrimination. Employers should be advised to treat all employees consistently regardless of citizenship status or national origin and to create and implement uniform policies and procedures relating to employment verification in order to avoid claims of immigration-related discrimination.

Anjali Waikar is an associate at Krokidas & Bluestein advising nonprofit, health care, and social service organizations and individuals on employment, privacy, and health care law.